Fayetteville council continues moratorium on consent searches

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February 23, 2012 3:03:45 PM PST

FAYETTEVILLE --

One day after a lawsuit was filed, city leaders reacted to who has the power over consent searches in Fayetteville.

Wednesday night, the city council voted to keep the moratorium on consent searches in place despite being sued. Now, there's a lot of talk about a letter Fayetteville's police chief sent to the Justice Department.

Chief Tom Bergamine was unavailable for comment. However, ABC11 obtained the letter he sent to the state Justice Department on Jan. 24. That's one day after the chief agreed to implement the moratorium on consent searches by his department.

The letter says, in part, that local governments should not be allowed to circumvent state and federal laws by issuing moratoriums. Therefore, according to Bergamine, the city's moratorium on consent searches should be deemed preempted and invalid.

Attorneys from the North Carolina Department of Justice seemed to agree. Now, Fayetteville is being sued by the state's Police Benevolent Association and some in city government want the police chief fired for insubordination.

However, Fayetteville City Councilwoman Val Applewhite supports the chief and voted against the moratorium. She doesn't think he did anything wrong.

"I believe he had the responsibility to check to see if we were doing something right or we were indeed wrong," said Applewhite. "So, he had the responsibility to double check that. Because in my opinion, I could understand that he felt that he may be operating under an unlawful order."

It's a decision that will ultimately be decided in court since neither side is backing down on its position.

It will be up to City Manager Dale Iman to decide if any action should be taken against the Bergamine before he retires July 1.

Fayetteville City Council voted last month to temporarily stop police from asking a motorist's consent for a search. The practice has been criticized as focusing on black drivers.